Withdrawal from the European Union

Withdrawal from the European Union is the legal and political process whereby an EU member state ceases to be a member of the Union. Under Article 50 of the Treaty on European Union (TEU), "Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements".[1]

Prior to this, no provision in the treaties or law of the EU outlined the ability of a state to voluntarily withdraw from the EU. The absence of such a provision made withdrawal technically difficult but not impossible.[7] Legally there were two interpretations of whether a state could leave. The first, that sovereign states have a right to withdraw from their international commitments;[8] and the second, the treaties are for an unlimited period, with no provision for withdrawal and calling for an "ever closer union" – such commitment to unification is incompatible with a unilateral withdrawal. The Vienna Convention on the Law of Treaties states where a party wants to withdraw unilaterally from a treaty that is silent on secession, there are only two cases where withdrawal is allowed: where all parties recognise an informal right to do so and where the situation has changed so drastically, that the obligations of a signatory have been radically transformed.[7]

Article 50 of the Treaty on European Union, enacted by the Treaty of Lisbon on 1 December 2009, introduced for the first time a procedure for a member state to withdraw voluntarily from the EU.[7] This is specified in Article 50 of the Treaty on European Union, which states that:[9]

Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3)[10] of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council [of the European Union], acting by a qualified majority, after obtaining the consent of the European Parliament.

The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.

A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.

If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.

This provision does not cover certain overseas territories which under TFEU Article 355 do not require a full treaty revision.[11]

Thus, once a member state has notified the European Council of its intention to leave, a period begins during which a withdrawal agreement is negotiated, setting out the arrangements for the withdrawal and outlining the country's future relationship with the Union. Commencing the process is up to the member state that intends to leave.

The article allows for a negotiated withdrawal, due to the complexities of leaving the EU. However, it does include in it a strong implication of a unilateral right to withdraw. This is through the fact that a state would decide to withdraw "in accordance with its own constitutional requirements" and that the end of the treaties' application in a member state that intends to withdraw is not dependent on any agreement being reached (it would occur after two years regardless).[7]

The treaties cease to apply to the member state concerned on the entry into force of the withdrawal agreement or, in the absence of such an agreement, two years after the member state notified the European Council of its intention to leave, although this period can be extended by unanimous agreement of the European Council.[12]

The leaving agreement is negotiated on behalf of the EU by the European Commission on the basis of a mandate given by the remaining Member States, meeting in the Council of the European Union. It must set out the arrangements for withdrawal, taking account of the framework for the member state's future relationship with the EU, though without itself settling that framework. The agreement is to be approved on the EU side by the Council of the EU, acting by qualified majority, after obtaining the consent of the European Parliament. For the agreement to pass the Council of the EU it needs to be approved by at least 72 percent of the continuing member states representing at least 65 percent of their population.[13]

The agreement is concluded on behalf of the Union by the Council and must set out the arrangements for withdrawal, including a framework for the State's future relationship with the Union, negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. The agreement is to be approved by the Council, acting by qualified majority, after obtaining the consent of the European Parliament. Should a former Member State seek to rejoin the European Union, it would be subject to the same conditions as any other applicant country.[14]

Remaining members of the EU would need to manage consequential changes over the EU's budgets, voting allocations and policies brought about by the withdrawal of any member state.[15]

This system gives a negotiated withdrawal, due to the complexities of leaving the EU (particularly concerning the euro). However it does include in it a strong implication of a unilateral right to withdraw. This is through the fact the state would decide "in accordance with its own constitutional requirements" and that the end of the treaties' application in said state is not dependent on any agreement being reached (it would occur after two years regardless).[7]

If negotiations do not result in a ratified agreement, the seceding country leaves without an agreement, and the EU Treaties shall cease to apply to the seceding country, without any substitute or transitional arrangements being put in place. As regards trade, the parties would likely follow World Trade Organization rules on tariffs.[16]

Article 50 does not spell out whether Member States can rescind their notification of their intention to withdraw during the negotiation period while their country is still a Member of the European Union. However, the President of the European Council said to the European Parliament on 24 October 2017 that “deal, no deal or no Brexit” is up to Britain. Indeed, the prevailing legal opinion among EU law experts and the EU institutions themselves is that a member state intending to leave may change its mind, as an “intention” is not yet a deed and intentions can change before the deed is done. [17] Until the Scottish Government did so in late 2018, the issue had been untested in court. On 10 Dec 2018, the European Court of Justice ruled that an Article 50 notification may be revoked unilaterally by the notifying member without the permission of the other EU members, provided that such revocation is in good faith and with the intention of renewing indefinite membership.[18]

The European Parliament resolution of 5 April 2017 on negotiations with the United Kingdom following its notification that it intends to withdraw from the European Union states, "a revocation of notification needs to be subject to conditions set by all EU-27, so that it cannot be used as a procedural device or abused in an attempt to improve on the current terms of the United Kingdom’s membership." [19] The European Union Policy Department for Citizens' Rights and Constitutional Affairs has stated that a hypothetical right of revocation can only be examined and confirmed or infirmed by the EU institution competent to this purpose, namely the CJEU.[20] In addition the European Commission considers that Article 50 does not provide for the unilateral withdrawal of the notification.[21]

Lord Kerr, the British author of Article 50, also considers the process is reversible[22] as does Jens Dammann.[23] Professor Stephen Weatherill disagrees.[24]. Former Brexit SecretaryDavid Davis has stated that the British Government "does not know for sure" whether Article 50 is revocable; the British prime minister "does not intend" to reverse it.[22]

Should a former member state seek to rejoin the European Union after having actually left, it would be subject to the same conditions as any other applicant country and need to negotiate a Treaty of Accession, ratified by every Member State.[25]

TFEU Article 355(6), introduced by the Treaty of Lisbon allows the status of French, Dutch and Danish overseas territories to be changed more easily, by no longer requiring a full treaty revision. Instead, the European Council may, on the initiative of the member state concerned, change the status of an overseas country or territory (OCT) to an outermost region (OMR) or vice versa.[26]

Some former territories of European Union members broke formal links with the EU when they gained independence from their ruling country or were transferred to an EU non-member state. Most of these territories were not classed as part of the EU, but were at most associated with OCT status, and EC laws were generally not in force in these countries.

Some current territories changed or are in the process of changing their status so that, instead of EU law applying fully or with limited exceptions, EU law mostly will not apply. The process also occurs in the opposite direction, as formal enlargements of the union occur. The procedure for implementing such changes was made easier by the Treaty of Lisbon.

Several states have political parties and individuals advocating and seeking withdrawal from the EU.[37] In member states, there are political movements of varying significance campaigning for withdrawal.

While no country other than the United Kingdom has voted on whether to withdraw from the EU, political parties criticizing the federative trend of the European Union and advocating its reshaping into a looser cooperation framework have gained prominence in several member states since the last European Parliament election in 2014, similarly to the rise of UKIP in the United Kingdom.

There are no clear agreements, treaties or precedents covering the scenario of an existing EU member state breaking into two or more states. The question is whether one state is a successor rump state which remains a member of the EU and the other is a new state which must reapply and be accepted by all other member states to remain in the EU, or alternatively whether both states retain their EU membership following succession.[38][39]

In some cases, a region leaving its state would leave the EU - for example, if any of the various proposals for the enlargement of Switzerland from surrounding countries were to be implemented at a future date.

During the failed Scottish independence referendum of 2014 it was clarified by the European commission that any newly independent country would be considered as a new state which would have to negotiate with the EU to rejoin.[40]
Such considerations also apply to the likes of Catalonia where even if the independence movement is in favor of rejoining the EU, other states may have an interest in blocking membership to deter independence movements within their own borders.[41]

Citizenship of the European Union is dependent on citizenship (nationality) of a member state, and citizenship remains a competence entirely vested with the member states. Citizenship of the EU can therefore only be acquired or lost by the acquisition or loss of citizenship of a member state. A probable but untested consequence of a country withdrawing from the EU is that, without otherwise negotiated and then legally implemented, its citizens are no longer citizens of the EU.[42] But the automatic loss of EU citizenship as a result of a member state withdrawing from the EU is the subject of debate.[43]

While a state can leave, there is no provision for a state to be expelled. But TEU Article 7 provides for the suspension of certain rights of a member state if a member persistently breaches the EU's founding values.

^"Article 50 was designed for European dictators, not the UK, says man who wrote it". The Independent. 29 March 2017. Article 50 was designed to be used by a dictatorial regime, not the UK government, the man who wrote it has said. ... As Secretary General of the European Convention in the early 2000s, Lord Kerr played a key role in drafting a constitutional treaty for the EU that included laws on the process by which states can leave the bloc.

^"Article 50 author Lord Kerr says Brexit not inevitable". BBC News. 3 November 2016. After leaving the foreign office, he was secretary-general of the European [C]onvention, which drafted what became the Lisbon treaty. It included Article 50 which sets out the process by which any member state can leave the EU.

"6. The European Council may, on the initiative of the Member State concerned, adopt a decision amending the status, with regard to the Union, of a Danish, French or Netherlands country or territory referred to in paragraphs 1 and 2. The European Council shall act unanimously after consulting the Commission."